People v. Albritton

69 A.D.3d 866, 891 N.Y.2d 914

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 2010
• Status: Published

Opinion

The defendant’s contention that the trial court erred in failing to instruct the jury on the defense of justification with respect to the count of the indictment charging him with criminal possession of a weapon in the second degree is unpreserved for appellate review (see CPL 470.05 [2]; People v Smith, 54 AD3d 421, 422 [2008]; People v Williams, 38 AD3d 577, 578 [2007]). In any event, the trial court properly refused to charge the defense of justification with respect to that count (see People v Pons, 68 NY2d 264, 265 [1986]; People v Smith, 54 AD3d 421 [2008]; People v Johnson, 30 AD3d 439 [2006]).

Contrary to the defendant’s contentions, the Supreme Court properly adjudicated him a persistent violent felony offender based on his 1992 and 1995 convictions (see People v Rodriguez, 49 AD3d 903, 904 [2008]; People v Adelman, 36 AD3d 926, 928 [2007]). The defendant is estopped from challenging his 1992 conviction because he did not challenge its constitutionality in 1995, when it served as the predicate for his sentencing as a second violent felony offender (see People v Rodriguez, 49 AD3d at 904; People v Adelman, 36 AD3d at 928). Skelos, J.E, Balkin, Leventhal and Lott, JJ., concur.